Edgerton v. Clinton ( 2014 )

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EDGERTON v. CLINTON—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. In
my opinion, the circumstances in the present case
should have made it apparent to a reasonable 911 dis-
patcher in the position of Ellen Vece, the dispatcher
employed by the named defendant, the town of Clinton
(town),1 that failing to order the defendant Matthew
Vincent2 to cease his pursuit of the car containing the
plaintiff’s conserved person, Walker Hopkins, would
create a risk of imminent harm to an identifiable
person.3
Unless noted otherwise, I accept the statement of
facts set forth in the majority opinion. There is, there-
fore, no need to repeat those facts here. I respectfully
disagree, however, with the majority’s position that our
earlier cases addressing the liability of school officials,
namely Burns v. Board of Education, 228 Conn. 640,
638 A.2d 1 (1994), and Purzycki v. Fairfield, 244 Conn.
101, 708 A.2d 937 (1998), should be dismissed when
analyzing the meaning of the ‘‘apparentness’’ prong of
the identifiable person-imminent harm exception
because ‘‘they involved school principals or superinten-
dents who had a special duty of care regarding children
in their respective school districts.’’ See footnote 25 of
the majority opinion. In my view, the fact that a munici-
pal official might owe a higher duty to schoolchildren
while on school property than another municipal offi-
cial would owe to other persons under other circum-
stances has little bearing on an analysis of whether a
threat of imminent harm to an identifiable person would
be apparent to a municipal official, in any setting.
As a preliminary matter, I respectfully disagree with
the majority’s understanding of the interplay between
the negligence of a municipal employee and the liability
of a municipality as codified by General Statutes § 52-
557n, or as the majority describes it: ‘‘between the pub-
lic versus private duty distinction and the identifiable
person-imminent harm exception to governmental
immunity.’’ See footnote 13 of the majority opinion. The
majority, relying on this court’s decision in Shore v.
Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), states
that, when engaging in actions that involve the exercise
of discretion, a municipal employee cannot be found
to owe a duty to an individual plaintiff unless one of the
three exceptions to discretionary act immunity apply. I
do not agree with this interpretation of the workings
of § 52-557n,4 as the language of the statute itself implies
that a determination that the municipal employee was
actually negligent necessarily precedes the application
of governmental immunity. As currently worded, § 52-
557n (a) (2) provides in relevant part: ‘‘Except as other-
wise provided by law, a political subdivision of the state
shall not be liable for damages to person or property
caused by . . . (B) negligent acts or omissions which
require the exercise of judgment or discretion as an
official function of the authority expressly or impliedly
granted by law.’’ (Emphasis added.) Thus, the plain
language of this subsection assumes that this exception
to the general rule of municipal liability,5 will operate
as a defense to liability, and apply after the municipal
employee’s actions have been found negligent. In other
words, my understanding of the proper procedure for
dealing with municipal liability is as follows: (1) the
plaintiff must prove that the municipal employee acted
negligently, in such a way as to cause injury to the
plaintiff; see, e.g., Considine v. Waterbury, 279 Conn.
830, 880, 905 A.2d 70 (2006) (‘‘[a] prima facie case of
negligence consists of four elements: duty; breach; cau-
sation; and injury’’); (2) the municipality must then dem-
onstrate that the municipal employee’s action occurred
during an activity which requires the exercise of discre-
tion by the employee; see, e.g., Westport Taxi Service,
Inc. v. Westport Transit District, 235 Conn. 1, 24, 664
A.2d 719 (1995) (‘‘We have previously determined that
governmental immunity must be raised as a special
defense . . . . Governmental immunity is essentially a
defense of confession and avoidance similar to other
defenses [that must] be affirmatively pleaded . . . .’’
[Citation omitted.]); (3) if necessary, the plaintiff must
then show that one of the exceptions to governmental
immunity, such as the identifiable person-imminent
harm exception, applies for liability to attach. See, e.g.,
Grady v. Somers, 294 Conn. 324, 335–37, 984 A.2d 684
(2009). Thus, the identifiable person-imminent harm
exception is not used to determine whether the munici-
pal agent owed the plaintiff a duty in the first place—
this initial determination will already be made when
determining whether the municipal defendant was neg-
ligent. Instead, the identifiable person-imminent harm
exception serves as a mechanism that courts use to sift
and separate those cases in which a negligent municipal
employee’s duty to act was so clear and unequivocal
that his or her failure to do so warrants a departure
from the general rule that municipal employees are
immune from liability under such circumstances.6 This
approach would thus balance society’s competing inter-
ests in (1) ensuring that our municipal officials are not
overly exposed to liability for split second decisions
that require the exercise of judgment, and (2) preserving
for the individual plaintiff the ability to hold a municipal-
ity responsible when one of its agents fails to act when
it is apparent to the agent that, as a result, an identifiable
person will be subjected to imminent harm.
Although I agree with the majority that, ultimately,
the determination of whether the identifiable person-
imminent harm exception to the doctrine of qualified
immunity is a matter of law; see, e.g., Purzycki v. Fair-
field, supra, 244 Conn. 107–108; this court must make
this determination in light of the factual findings of the
jury. In the present case, the jury made an explicit
factual finding related to the issue of ‘‘apparentness.’’
In my opinion, the two parties disagreed as to whether it
would be apparent to a reasonable dispatcher in Vece’s
position that failing to order Vincent to cease his pur-
suit, in and of itself, created an imminent risk of harm
to an identifiable person, namely, the occupants of the
car being followed by Vincent. Both parties presented
evidence in the form of expert witnesses on this point.
The defense expert opined that such a risk would not
be apparent to a reasonable dispatcher, noting that Vece
followed the written directives set forth by the town
and utilized discretion in dealing with this emergency.
The plaintiff’s expert, on the other hand, opined that
Vece did not act as a reasonable dispatcher would have
because there are inherent dangers associated with
allowing the victim of a hit and run to follow the
offending vehicle that would have been apparent to a
reasonable dispatcher. The answers to the jury interrog-
atories indicate that the jury credited the plaintiff’s
expert and, in doing so, made a factual finding that it
would have been apparent to a reasonable dispatcher
in Vece’s position that failing to cease Vincent’s pursuit
would create an imminent risk of harm. In my opinion,
this court should consider all of the facts found by the
jury and make all reasonable inferences from them in
the light most favorable to sustaining its verdict. See,
e.g., Craine v. Trinity College, 259 Conn. 625, 635, 791
A.2d 518 (2002).
Turning to the substance of the majority’s opinion, I
disagree with its analysis pursuant to the current formu-
lation of the identifiable person-imminent harm excep-
tion enunciated by this court in Doe v. Petersen, 279
Conn. 607, 618 and n.10, 903 A.2d 191 (2006). In that
case, this court set forth, for the first time, three distinct
prongs that must be satisfied before the exception
applies.7 These prongs are: ‘‘(1) an imminent harm; (2)
an identifiable victim; and (3) a public official to whom
it is apparent that his or her conduct is likely to subject
that victim to harm.’’ Id. On appeal, the town does not
dispute the jury’s findings that (1) Vece had a duty to
prevent imminent harm from occurring to Hopkins, (2)
Vece breached that duty, and (3) that Hopkins was an
identifiable person for purposes of whether the identifi-
able person-imminent harm exception to discretionary
act immunity applies. Thus, the applicability of the
exception turns on whether, under the circumstances,
it would have been apparent to a reasonable dispatcher
in Vece’s position that failing to act would expose Hop-
kins to imminent harm.8
The majority concludes that the information con-
veyed to Vece during Vincent’s telephone call would
not have made any risk of imminent harm apparent
to a reasonable dispatcher. In doing so, the majority
discounts the circumstances that, in my opinion, would
have made it apparent to a reasonable dispatcher in
Vece’s position that, if the dispatcher did not tell Vincent
to pull over, a risk of imminent harm would be created
to one or more identifiable persons, including Hopkins.
In my view, the dialogue between Vece and Vincent,
considered in light of the testimony of Nancy Dzoba,
the plaintiff’s expert witness, would have provided a
reasonable dispatcher in Vece’s position with sufficient
information to make apparent the imminent risk of
harm created by allowing the pursuit to continue.
Dzoba had more than twenty years of combined expe-
rience as an emergency dispatcher and as a supervisor
of emergency dispatchers. The plaintiff offered her tes-
timony as proof of the standard of care owed by a
reasonable dispatcher under the circumstances pre-
sented by this case, and to prove that the risks of
allowing Vincent to proceed with his pursuit of the
vehicle that hit him would have been apparent to a
reasonable dispatcher.9 First, Dzoba outlined the gen-
eral duty that dispatchers owe to the public when deal-
ing with an emergency: ‘‘You always want to make sure
that . . . no citizen becomes a victim. . . . They’re
not trained to subdue a culprit or to subdue a suspect.
So you don’t want to put somebody in that situation.’’
Asked if anything ‘‘jump[ed] out’’ to her regarding this
particular emergency call, Dzoba noted that ‘‘as [Vece]
heard . . . the person had left the scene . . . the
[caller has] already . . . been a victim of a crime
because [he was] a victim of a hit and run. So you don’t
want [him] to be a victim a second time because if [he]
pursue[s] or chase[s] [the] . . . other vehicle . . . you
don’t know if you’re going to end up with a case of
road rage or if you’re going to be chasing somebody
and then [if] the people you’re chasing don’t know who
you are, they drive erratically . . . .’’ The plaintiff’s
attorney then asked, ‘‘[i]n the case of a hit and run
where somebody says, I’m going to catch up and get
their plate, who are the people who are in imminent
risk of getting hurt if the dispatcher doesn’t say, pull
over civilian and get to a safe place, the police are
taking care of this?’’ Dzoba replied: ‘‘The original con-
cern would be the victim of the hit and run themselves,
because . . . you don’t know who’s in that car, why
did they flee the scene. . . . If he’s chasing that other
person that was the culprit in the hit and run . . . the
suspect doesn’t know why this person is behind [him]
or may know but doesn’t want to stop. So [the suspect]
may drive erratically to get away from [him]. So there
could be a chance that either they’re going to have
an accident and get injured or they’re going to injure
somebody else . . . .’’ Thus, in Dzoba’s opinion, the
words used by Vincent to convey his intended behavior
to Vece at the very outset of the telephone call would
have alerted a reasonable dispatcher to an imminent
risk that a further accident could occur involving the
pursued vehicle, causing injury to those within it.
The majority opinion focuses on Dzoba’s agreement
with the defense counsel that there were no audible
cues that would indicate that either car was driving
erratically or at a high rate of speed. In my opinion,
this approach takes too narrow a view of what might
be considered ‘‘circumstances’’ that would alert a rea-
sonable dispatcher to the imminent risk of harm that
was created when Vincent decided to leave the scene
of the accident and pursue the car that hit him. Although
Dzoba noted that she could not be certain, from the tape
alone, that Vece’s breach of duty placed any identifiable
person at risk of imminent harm at any specific moment
in time during the chase. The tape contained a state-
ment, one second into the call, that would have made
the situation clear to a reasonable dispatcher. The con-
tent of the tape cannot be considered in a vacuum.
Doing so would ignore the specialized training received
by dispatchers that distinguishes them from members
of the general public.10 Dzoba testified that none of the
national organizations that provide training to dispatch-
ers anticipate that a dispatcher will allow the victim of
a hit and run to pursue a fleeing vehicle. Dzoba
explained that ‘‘the assumption is . . . if you’re a vic-
tim of a hit and run, you’re going to stay at the scene
and make the report. . . . Like [I] said it’s a standard
of care if we knew somebody was leaving the scene
we would tell them to go back and wait for an officer.
We would ask [initial] questions and as you heard in
the beginning of the tape [Vece] didn’t ask the questions
. . . was anybody hurt, where did the accident occur.
It wasn’t . . . until later in the call . . . she got some
of that information, but those questions that were on
there were not asked during the call, the majority of
them weren’t. . . . The assumption is that [the dis-
patcher is] going to have the person stay at the scene
and make the police report.’’ Thus, Dzoba was unequivo-
cal that, when a dispatcher fails to require the victim
of a hit and run to remain at the scene and, instead,
allows or encourages the victim to pursue the offender,
a risk of imminent harm is created.
Indeed, an examination of Vece’s own testimony dem-
onstrates that the mere fact of pursuit would have made
this risk apparent to a reasonable dispatcher in her
position. Vece testified that ‘‘[t]he act [of chasing] could
cause more accidents or antagonize whoever he’s chas-
ing.’’ Vece also admitted that ‘‘it’s not appropriate to
chase somebody,’’ but claimed that she believed that
Vincent was ‘‘just keeping [the car] in sight’’ and was
not aware that he was not going the speed limit.
The majority’s conclusion that the risk would not be
apparent to a reasonable dispatcher in Vece’s position
seems to be based on its understanding that Vincent’s
pursuit of the vehicle that hit him would have created
a risk of imminent harm only if the vehicles were travel-
ing at a high rate of speed. I disagree. Although Vece’s
own subjective belief was that no risk of imminent harm
could result from the pursuit so long as Vincent did not
exceed the speed limit, that belief is directly contra-
dicted by Dzoba’s testimony. Indeed, Dzoba’s testimony
clearly indicates that, by allowing the victim of a hit
and run to follow the offending vehicle, a dispatcher
creates a risk that the driver of the offending vehicle
may be antagonized or start driving erratically at any
moment. These dangers are not dependent on speed.
On cross-examination, Dzoba specifically testified that
neither the speed of cars involved, nor the conditions
of the roads on which they were traveling, were relevant
to the formulation of her opinions. Thus, the jury rea-
sonably could have concluded that, in the present case,
hearing the words, ‘‘I just got hit by a motor vehicle
. . . he just took off and I’m trying to catch up to him
to get his plate,’’ words which Vincent said approxi-
mately one second into his telephone call with Vece,
would have made it apparent to a reasonable dispatcher
in Vece’s position that her failure to keep Vincent at
the scene of the accident created a risk of imminent
harm to Vincent and the occupants of the pursued
vehicle.
I also respectfully disagree with the majority’s conclu-
sion that Vece had no time to react after she first had
notice that the cars were traveling at a high rate of
speed. Twenty-six seconds before the accident
occurred, Vincent reported to Vece that the car that hit
him had ‘‘just taken off and he’s going at a high rate
of speed.’’ Given Dzoba’s testimony that a reasonable
dispatcher is aware that chases can cause erratic driv-
ing, it should have been apparent that the vehicle con-
taining Hopkins was reacting to being followed. It
would be reasonable for a jury to infer that, had Vece
immediately told Vincent to cease his pursuit, the car
containing Hopkins would not have continued at the
same high rate of speed because the driver would no
longer feel a need to attempt to escape Vincent.
The majority asserts that this case, more clearly than
Doe, reflects a set of circumstances in which the identifi-
able person-imminent harm exception does not apply.
I would come to the opposite conclusion. In my opinion,
the present case, unlike other cases recently addressed
by the court, including Doe v. Petersen, supra, 279 Conn.
607, and Fleming v. Bridgeport, 284 Conn. 502, 935
A.2d 126 (2007), presents a set of circumstances that
strongly warrants the application of the identifiable per-
son-imminent harm exception to qualified immunity. In
Doe and Fleming, the officials were not provided with
all of the information that a reasonable official in their
positions would have needed in order for it to be appar-
ent that their actions would pose an imminent risk of
harm to an identifiable person. See Doe v. Petersen,
supra, 620 (‘‘[b]ecause [the official] never became
aware of the alleged assault, it could not have been
apparent to him that his response to the plaintiff’s con-
cerns would have been likely to subject her to a risk
of harm’’); Fleming v. Bridgeport, supra, 534–35 (‘‘[T]he
plaintiff did not inform the officers of, and no other
source made clear, the most critical piece of informa-
tion that would have made it apparent that the plaintiff
would have been subject to the alleged imminent harm:
that [the plaintiff] was an occupant with no other place
of residence. Instead, [the plaintiff’s roommate] told
the officers just the opposite in terms of [the plaintiff’s]
status as a guest.’’). In the present case, Vece not only
had all of the information necessary to recognize the
risk of imminent harm created by her inaction, but
she also actively participated in creating the dangerous
situation itself. For example, Vece asks Vincent approxi-
mately thirty seconds into the call, after the pursuit had
begun, ‘‘[d]id you get a plate?’’ Nearly two minutes later,
after Vece had run the license plate and reported the
listed color of the vehicle to responding officers, she
asked Vincent ‘‘what [color is] the vehicle?’’ Vece also
asked Vincent to verify his location at least twice, and
repeatedly reported the locations of Vincent and the
chased vehicle to responding officers. By failing to
order Vincent to remain at the scene and, once the
pursuit was underway, effectively encouraging Vincent
to continue his pursuit by requesting additional informa-
tion, the jury reasonably could have inferred that Vece
essentially used Vincent as an additional set of eyes
and ears in an attempt to help the police quickly appre-
hend the fleeing vehicle.
Vece’s active involvement in the creation of the risk
to Hopkins creates a set of circumstances that, in my
opinion, warrants the application of the identifiable per-
son-imminent harm exception more readily than other
cases in which this court has actually applied that
exception. For example, in Burns, the superintendent
of Stamford schools was denied qualified immunity
based on application of the identifiable person-immi-
nent harm exception when a student brought an action
for injuries sustained when he slipped on a sheet of ice
in the school’s courtyard. Burns v. Board of Education,
supra, 228 Conn. 649–51. In that case, the superinten-
dent noted that ‘‘he did not visit the high school, was
unaware of the icy conditions and did not instruct or
encourage any student to use the courtyard on the day
in question.’’ (Internal quotation marks omitted.) Id.,
643. This lack of knowledge or involvement by the
superintendent was corroborated by the head custodian
at the school, who indicated that ‘‘the decision of
whether to salt and sand the premises was his to make
and was not the superintendent’s decision.’’ (Internal
quotation marks omitted.) Id. Despite this testimony,
the court found that the identifiable person-imminent
harm exception to qualified immunity applied to the
superintendent. Id., 649–51. The court appears to have
addressed the ‘‘apparentness’’ aspect of the analysis in
that case by simply stating that ‘‘the potential for harm
from a fall on ice was significant and foreseeable.’’
Id., 650.
Likewise, in Purzycki, this court concluded that there
was sufficient evidence from which a jury could con-
clude that the identifiable person-imminent harm
exception applied and, by doing so, prevented a school
principal and a board of education from being entitled
to governmental immunity. Purzycki v. Fairfield,
supra, 244 Conn. 103–104. An action was brought
against the defendants in that case because a student
sustained injuries when he was tripped by another stu-
dent while running in an unmonitored hallway after
finishing his lunch, causing the tripped student’s head
to go through the ‘‘wire mesh window of the exit door
. . . .’’ (Internal quotation marks omitted.) Id., 104. In
finding that the exception applied, this court must have
determined that it would have been apparent to reason-
able officials in the position of the principal and the
board of education that their conduct created an immi-
nent risk of harm to an identifiable person. See id., 106.
Regarding this part of the analysis, this court noted that
‘‘the risk of harm was significant and foreseeable, as
shown by the principal’s testimony ‘that if elementary
schoolchildren are not supervised, they tend to run and
engage in horseplay that often results in injuries.’ ’’ Id.,
110. The court in Purzycki also noted that the school
policy was to require supervision of the students during
lunch and that, although the hallway itself was not moni-
tored, ‘‘teachers in the classrooms abutting the hallway
were instructed to keep their doors open in order to
hear or see any activity in the hallway.’’ (Internal quota-
tion marks omitted.) Id., 104. The court specifically
noted that the principal was never asked if, in the previ-
ous twenty-two years during which the hall monitoring
policy had been in place, injuries had occurred to chil-
dren while in the hallway on their way to recess. Id.,
111 n.7.
The majority distinguishes Burns and Purzycki from
the present case because, as it observes, ‘‘they involved
school principals or superintendents who had a special
duty of care regarding children in their respective
school districts.’’ See footnote 25 of the majority opin-
ion. While I do not dispute that school officials owe a
higher duty of care to schoolchildren who are on school
property during school hours; see, e.g., Burns v. Board
of Education, supra, 228 Conn. 649–50; the existence
of a special duty of care does not seem particularly
relevant when examining whether it would be apparent
to a particular municipal official that his or her conduct
creates an imminent risk of harm to an identifiable
victim. In this case, the jury necessarily determined that
the municipal official owed Hopkins a duty of care
when it concluded that the official was negligent. As
the majority makes clear during its analysis, ‘‘appar-
entness’’ requires the plaintiff to show that ‘‘the circum-
stances would have made it apparent to a reasonable
government agent [that her conduct would create a risk
of imminent harm to the plaintiff].’’ (Emphasis added.)
See footnote 14 of the majority opinion. The level of
duty owed by the official is not relevant to that analysis.
Similarly, I do not agree with the majority that Pur-
zycki addressed only the ‘‘imminence’’ prong of the
exception and is, therefore, irrelevant to this court’s
understanding of the ‘‘apparentness’’ prong in the pres-
ent case even if the majority is correct that the only
issue on appeal was the ‘‘imminence’’ prong of the
exception. In Purzycki, the jury had already found in
favor of the plaintiffs but the trial court entered a
directed verdict in favor of the defendants, having con-
cluded that the plaintiffs had failed to prove that the
plaintiff child was subject to imminent harm. Purzycki
v. Fairfield, supra, 244 Conn. 105. The court noted that
‘‘because the material facts of the case are undisputed,
the question presented here is one of law.’’ Id., 108 n.4.
Thus, in Purzycki, as in this case, the court exercised
plenary review as to whether the exception applied,
and unlike this case, it does not appear, as the majority
contends, that the parties in Purzycki agreed that the
only issue pertained to the ‘‘imminence’’ prong. In fact,
both the arguments made by the parties in that case
and the analysis set forth by this court seem to suggest
that both the ‘‘identifiable victim’’ and ‘‘apparentness’’
prongs of the analysis were scrutinized. Before dis-
cussing imminence, the court first made it plain that
the plaintiff child was considered an ‘‘identifiable per-
son.’’ Id., 108–109. Although not set forth separately,
both the parties in Purzycki and this court evidently
folded the question of ‘‘apparentness’’ into the question
of imminent harm.11 For example, the defendants in
Purzycki, urging affirmance of the ruling of the lower
courts, noted that ‘‘this type of harm [suffered by the
plaintiff child] had not previously occurred during the
twenty-two year time period in which the same level
of supervision had occurred. . . . [T]he hallway itself
harbored no dangers or defects.’’ Id., 110. In addition,
in making its determination that imminent harm
existed, this court noted that ‘‘because the school
administrators here had reason to foresee the danger
that could occur on a daily basis, the harm in the present
case was not as remote a possibility as was the harm
in Evon [v. Andrews, 211 Conn. 501, 559 A.2d 1131
(1989)].’’ Purzycki v. Fairfield, supra, 111. The lan-
guage contained within these passages pertains directly
to the ‘‘apparentness’’ prong.12 The analysis set forth by
this court in Purzycki should not, therefore, be dis-
counted so quickly by the majority.
The majority correctly observes that the justification
for qualified immunity is that it avoids excessive expo-
sure to liability so that municipal officials are not dis-
couraged from taking action for fear of retaliatory
lawsuits. I worry, however, that this court’s refusal to
apply the identifiable person-imminent harm exception
in cases such as this one sends the wrong message to
our municipalities. By concluding that the circum-
stances would not have made it apparent to a reason-
able dispatcher in Vece’s position, this court, in my
view, minimalizes evidence contained within the record
which indicates that a properly trained dispatcher
would not have acted in the same manner as Vece after
discovering Vincent’s intent to chase the car that hit
him. Thus, the town is insulated from liability not
because Vece made a split second determination
between two equally defensible choices, but because
she was blind to a risk that a more competent dispatcher
would have appreciated. Finding that the town is enti-
tled to immunity under such circumstances does not
encourage the measured use of judgment or discretion,
rather, it encourages municipalities to engage in wilful
blindness to dangers that might be prevented through
the institution of better training programs. I agree with
former Chief Justice Peters’ dissent in Shore v. Stoning-
ton, supra, 187 Conn. 162, in that I also believe that our
decision to recognize the identifiable person-imminent
harm exception to qualified immunity ‘‘signalled a
change, such as has occurred in our sister jurisdictions,
in the law governing the liability of public officers and
of the municipalities that bear the ultimate responsibil-
ity for their negligence.’’ Sometimes, in order to improve
the basic safety of its citizenry, a municipality must be
held responsible for the poor judgment of its employees
when carrying out discretionary acts. Such responsibil-
ity encourages our municipalities to be vigilant in their
hiring practices and vigorous in their training programs.
A refusal to apply the identifiable person-imminent
harm exception in a case such as this one encourages
neither practice.
In the end, this case turns on the level of background
knowledge and training that one would impart to a
reasonable dispatcher in the position of Vece. Cases
such as Burns and Purzycki indicate that courts should
consider circumstances that would have made the risk
of imminent harm apparent to a reasonable official in
the place of the actual official, even if those same cir-
cumstances did not actually alert the specific official
in question. In my opinion, a reasonable jury could
have concluded that a reasonable dispatcher in Vece’s
position would have been aware of the inherent risks
in allowing the victim of a hit and run to pursue the
offending vehicle—at any speed. Accordingly, I would
affirm the judgment of the trial court. Therefore, I
respectfully dissent.
1
The majority frames the test for ‘‘apparentness’’ as whether ‘‘the circum-
stances would have made the government agent aware that his or her acts
or omissions would likely have subjected the victim to imminent harm. . . .
This is an objective test pursuant to which we consider the information
available to the government agent at the time of her discretionary act or
omission.’’ (Citation omitted; footnote omitted.) In a footnote, the majority
clarifies that ‘‘[w]e do not ask whether the government agent actually knew
that harm was imminent but, rather, whether the circumstances would
have made it apparent to a reasonable government agent that harm was
imminent.’’ See footnote 14 of the majority opinion. I understand the majori-
ty’s test to mean that, in the present case, one should inquire as to whether
the circumstances would have made the risk of imminent harm apparent
to a reasonable government agent in the position of the actual govern-
ment agent.
2
The Clinton Volunteer Fire Department and William Cardillo were also
named as defendants in the present case. As the majority notes, however,
these defendants have not actively participated in the present appeal. See
footnote 3 of the majority opinion.
3
In view of my conclusion that a 911 dispatcher should always tell a
civilian motorist to stop a pursuit, I am not convinced that Vece did not
have a ministerial duty to order Vincent to cease his pursuit, particularly
in light of the complete absence of any written policy or directives for
dispatchers in the town when dealing with a citizen pursuit after a hit and
run. In the present case, however, because both parties concede that Vece
was performing a discretionary act, I limit my analysis in this dissent solely
to whether the identifiable person-imminent harm exception to discretionary
act immunity applies. See Ugrin v. Cheshire, 307 Conn. 364, 398, 54 A.3d
532 (2012) (Eveleigh, J., concurring and dissenting).
4
I note preliminarily that this statutory section was not at issue in Shore.
In that case, the statute at issue stated: ‘‘Any town . . . notwithstanding
any inconsistent provision of law . . . shall pay on behalf of any employee
of such municipality . . . all sums which such employee becomes obligated
to pay by reason of the liability imposed upon such employee by law for
damages awarded for infringement of any person’s civil rights or for physical
damages to person or property, except as hereinafter set forth, if the
employee, at the time of the occurrence, accident, physical injury or damages
complained of, was acting in the performance of his duties and within the
scope of his employment, and if such occurrence, accident, physical injury
or damage was not the result of any wilful or wanton act of such employee
in the discharge of such duty.’’ (Internal quotation marks omitted.) Shore
v. Stonington, supra, 187 Conn. 148 n.1, quoting General Statutes (Rev. to
1981) § 7-465.
5
General Statutes § 52-557n (a) (1) provides in relevant part: ‘‘Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . . .’’
6
The usefulness in this conceptualization of the interplay between negli-
gence and governmental immunity is illustrated in a case such as this one.
The jury had previously established that the defendant town’s municipal
employee was 90 percent at fault for the plaintiff’s conserved person’s
injuries. Under my conceptualization of the interplay between negligence
and governmental immunity, regardless of whether governmental immunity
applies, a jury’s determination of fault remains constant—instead the rele-
vant issue becomes whether the municipality will be liable for the employee’s
negligence, not whether the employee was at fault at all. The majority
suggests because the identifiable person-imminent harm exception to discre-
tionary act governmental immunity does not apply in the present case, the
municipal employee did not owe the plaintiff a duty to act at all. Under the
majority’s approach, having concluded that the identifiable person-imminent
harm exception to governmental immunity does not apply, it apparently
must also conclude that the jury’s apportionment of fault was also invalid.
This determination has implications not only for the plaintiff and the defen-
dant town, but also the other parties involved in the accident, as a different
apportionment of fault is now required.
7
I do not mean to insinuate that the court in Doe invented new language.
Indeed, this court used the same language to describe this exception in
earlier opinions. See, e.g., Shore v. Stonington, supra, 187 Conn. 153 (‘‘[w]e
have recognized the existence of [a duty of a public official to act] where
it would be apparent to the public officer that his failure to act would be
likely to subject an identifiable person to imminent harm’’ [citing Sestito v.
Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979)]); Evon v. Andrews, 211
Conn. 501, 505, 559 A.2d 1131 (1989) (‘‘[t]he immunity from liability for the
performance of discretionary acts by a municipal employee is subject to
three exceptions . . . first, where the circumstances make it apparent to
the public officer that his or her failure to act would be likely to subject
an identifiable person to imminent harm.’’ [citing Sestito v. Groton, supra,
528]); Purzycki v. Fairfield, supra, 244 Conn. 108 (‘‘‘[o]ur cases recognize
three [exceptions to qualified immunity for discretionary acts]: first, where
the circumstances make it apparent to the public officer that his or her
failure to act would be likely to subject an identifiable person to imminent
harm’ ’’ [quoting Burns v. Board of Education, supra, 228 Conn. 645, and
Evon v. Andrews, supra, 505]). Doe is, however, the first opinion of this
court to split this language out into three distinct elements. See Doe v.
Petersen, supra, 279 Conn. 616 (‘‘Discretionary act immunity is abrogated
when ‘the circumstances make it apparent to the public officer that his or
her failure to act would be likely to subject an identifiable person to imminent
harm . . . .’ [Evon v. Andrews, supra, 505]. By its own terms, [the test for
the identifiable person-imminent harm exception] requires three things: [1]
an imminent harm; [2] an identifiable victim; and [3] a public official to
whom it is apparent that his or her conduct is likely to subject that victim
to that harm.’’).
8
The town also challenged whether the dispatcher’s negligence was the
proximate cause of Hopkins’ injuries. I would also affirm the lower court’s
refusal to overturn the jury’s verdict on this issue, but in light of the majority’s
ruling on the applicability of the identifiable person-imminent harm excep-
tion, I do not analyze this issue in detail.
9
I respectfully disagree with the majority’s conclusion that a reasonable
dispatcher in Vece’s position would have no notice that Vincent was
attempting to assist the police in apprehending the vehicle that hit him.
Throughout more than four minutes of conversation between Vincent and
Vece are instances of Vincent: (1) providing Vece with identifying informa-
tion of the car that required Vincent to keep the car in sight, such as the
license plate number Hopkins’ car, or (2) providing Vece with updates as
to the location of the Hopkins’ car. Indeed, the only conceivable purpose
for Vincent’s actions was to relay additional information to the police,
through Vece, that would ensure the apprehension of that vehicle. This
reasoning is bolstered by the fact that Vece actually relayed this information
to the police as she received it from Vincent.
10
The majority suggests that my analysis focuses on the standard of care
for a reasonable dispatcher when determining whether the imminent risk
created by Vece’s negligence would have been apparent to a reasonable
dispatcher. To clarify, it is the following statement, made by Vincent one
second into the call, that would have made the situation unfolding apparent
to a reasonable dispatcher: ‘‘I just got hit by a motor vehicle and . . . he
just took off and I’m trying to catch up to him to get his plate.’’ That
statement, which was indisputably relayed to Vece, contains the specific
information that, relayed to a reasonable dispatcher, would convey that a
car chase between two private citizens is occurring. This statement would
have raised alarm bells to a reasonable dispatcher because dispatchers are
made aware of the risks involved in citizen car chases—namely, erratic
driving and provocation of the chased vehicle. The testimony of both Dzoba
and Vece on this point is consistent. The point at which they differ is that
Dzoba’s testimony, which the jury was free to credit, indicated that such
risks would be immediately apparent to a reasonable dispatcher after hearing
a statement like the one made by Vincent. In my view, the fact that Dzoba
could not pinpoint from the tape the precise second at which the imminent
risk of harm was actually created as a result of Vincent’s pursuit is too
narrow a view of the ‘‘apparentness’’ prong. The tape sufficiently conveyed
that a risk of harm was imminent if Vincent did not cease his pursuit, and
in my opinion that is all that is required to meet this prong of the identifiable
person-imminent harm exception.
11
This may be due to the fact that Purzycki was decided before Doe, the
first opinion to set out the identifiable person-imminent harm exception as
a three-pronged test. See footnote 7 of this dissenting opinion. Thus, the
mere fact that the court in Purzycki did not address each ‘‘prong’’ of the
current test individually should not, in my opinion, serve as grounds to
immediately dismiss the opinion as lacking precedential value in determining
the meaning of ‘‘apparentness.’’
12
I also note that this court has previously characterized Purzycki as
‘‘faithfully recit[ing] and appl[ying] the ‘apparentness’ requirement.’’
(Emphasis added.) Doe v. Petersen, supra, 279 Conn. 619, citing Prescott v.
Meriden, 273 Conn. 759, 763, 873 A.2d 175 (2005), Purzycki v. Fairfield,
supra, 244 Conn. 108, Burns v. Board of Education, supra, 228 Conn. 645–46,
and Evon v. Andrews, supra, 211 Conn. 505.